K Jagadeeshappa S/O K ... vs Kusuma W/O K Jagadeeshappa
2022 Latest Caselaw 3201 Kant

              IN THE HIGH COURT OF KARNATAKA,
                       DHARWAD BENCH

           DATED THIS THE 24TH DAY OF FEBRUARY 2022

                           PRESENT

             THE HON'BLE MR. JUSTICE S.G. PANDIT
                             AND
       THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                 M.F.A. No.101686/2014 (MC)
BETWEEN:

K. JAGADEESHAPPA S/O K. HANUMANTHAPPA,
AGE: 51 YEARS, OCC: SCHOOL TEACHER,
R/O: SORATUR VILLAGE, TQ: HONNALI,
DIST: DAVANGERE.
                                                   ...APPELLANT
(BY SRI S. P. KANDAGAL, ADVOCATE)

AND:

KUSUMA W/O K. JAGADEESHAPPA,
AGE: 46 YEARS, OCC: SCHOOL TEACHER,
R/O: BENAKANAKONDA, TQ: RANEBENNUR,
DIST: HAVERI.
                                               ...RESPONDENT
(BY SMT. NIRMALA B. G., ADVOCATE;
SRI NAGARAJ KUDAPALI, ADVOCATES)

      THIS MFA IS FILED U/SEC.28 OF THE HINDU MARRIAGE ACT,
1955, PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DATED
12.03.2014, PASSED IN M.C.NO.81/2012 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE, RANEBENNUR.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL
HEARING THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:
                                  2



                            JUDGMENT

The appellant-husband had filed a petition seeking

dissolution of marriage in M.C.No.81/2012, on the file of

Prl.Senior Civil Judge., Ranebennur (for short 'the Trial Court').

The wife opposed the petition filed by the husband, seeking

dissolution of marriage and contested the petition. The trial

Court after holding the trial has concluded that the petitioner has

made out a ground to grant the divorce. Accordingly, the petition

seeking dissolution of marriage is dismissed in terms of the

judgment and decree dated 12.03.2014.

2. Aggrieved by the said judgment and decree, the

petitioner is in appeal. This appeal is listed for final hearing. The

parties are present before the Court. Learned counsel for the

appellant and respondent are also present before the Court. Both

the learned counsel for the parties would submit that the parties

have settled the dispute amicably and accordingly they have

filed a petition under Section 13B(1) of the Hindu Marriage Act,

seeking dissolution of marriage on mutual terms. An application

is also filed for waiving of waiting six months period to grant the

decree of divorce on mutual terms.

3. Joint memo is filed before this Court. The appellant-

husband has undertaken to pay Rs.15,00,000/- towards alimony.

The respondent-wife has agreed to accept Rs.15,00,000/- on

behalf of her minor daughter by name Nanda, aged 17 years,

studying in 1st PUC, who is also present before this Court.

4. This Court has perused the terms and conditions in

the compromise petition. It is stated, the petition is filed under

Section 13B(1) of the Hindu Marriage Act, that the parties are

residing separately for the last 15 years. It is also stated that

there is no chance of resumption of the marital relationship

between the appellant and respondent. The appellant and

respondent are both educated and employees and both are in

government employment. This Court is satisfied with the terms

and conditions incorporated in the petition filed under Section

13B(1) of the Hindu Marriage Act, seeking dissolution of

marriage by mutual consent. This Court finds that there is no

impediment to grant the divorce on mutual terms.

5. The application for waiving six months period is also

considered and this Court is satisfied with the grounds urged in

the application to waive six months period to grant a decree for

divorce on mutual terms. Considering the fact that the husband

and wife are living separately for the last 15 years and this

original petition seeking dissolution of marriage is filed in the

year-2012, this Court is of the opinion that no purpose will be

served in case the petition is kept pending alive for the next six

months. There is no chance of parties changing their stand after

six months. Accordingly, the petition seeking waiver of six

months waiting period is allowed.

6. This Court has also perused the memo filed by the

parties. The appellant-husband has undertaken to pay

Rs.15,00,000/- towards alimony in four instalments. The

relevant portion of the memo for settlement filed by the parties

reads as under;

"I. The appellant-husband shall pay Rs.15 lakhs (fifteen lakhs) in full settlement of permanent alimony (including the arrears of maintenance) payable to the daughter. The mode of the payment

of this amount of money towards permanent alimony is as mentioned below:

a. The appellant is paying today by cash Rs.3,00,000/- (Three lakhs) towards part payment of the alimony.

b. It is agreed that a balance of Rs.12,00,000/- (Twelve lakhs) shall be paid in 4 instalments through post-dated cheques, particulars of which are mentioned below.

II. The respondent-wife has agreed to relinquish her right to a share in the ancestral property of the appellant, and she shall withdraw the maintenance petition pending before C.J.Court at Ranebennur immediately."

7. The appellant has also issued four post-dated

cheques for Rs.3,00,000/- each as described below:

1. Cheque No.190065, dated 24.08.2022 for Rs.3,00,000/- (three lakhs).

2. Cheque No.190066, dated 24.02.2023 for Rs.3,00,000/- (three lakhs).

3. Cheque No.190067, dated 24.08.2023 for Rs.3,00,000/- (three lakhs).

4. Cheque No.190068, dated 24.02.2024 for Rs.3,00,000/- (three lakhs).

8. Today the appellant has also paid Rs.3,00,000/- to

the respondent before the Court and the respondent has

accepted Rs.3,00,000/- paid by the appellant. Under these

circumstances, this Court is of the opinion that the petition

seeking dissolution of marriage on mutual terms is to be

accepted and marriage dated 22.06.2003 solemnized between

appellant and respondent is dissolved in terms of the decree of

divorce.

9. To ensure that the alimony is paid to the wife as

agreed, it is made clear that in the event of default on the part

of the husband to pay any of the instalments referred above, the

default will result in penal action against the husband since the

husband has also undertaken to pay the amount as specified in

the joint memo. The default or dishonour of cheque amounts to

contempt of Court and the respondent-wife is at liberty to

initiate contempt proceeding against the husband in the event of

default of any of the instalments of alimony as mentioned above.

10. The right to initiate contempt proceedings does not

take away the right of the respondent-wife to initiate action

under Section 138 of N.I.Act. This action will be in addition to

the right to initiate contempt proceeding, in the event of default.

11. It is also made clear that the husband will also face

action in the departmental proceedings in the event of default of

any of the instalments to be paid in terms of the joint memo

filed before this Court.

Accordingly, the appeal is disposed of.

The petition in M.C.No.81/2012 on the file of Prl.Senior

Civil Judge, Ranebennur is allowed setting aside the judgment

and decree dated 12.3.2014 and the marriage of the appellant

and respondent solemnized on 22.6.2003 is dissolved by a

decree of divorce by allowing petition filed under Section 13B of

the Hindu Marriage Act.

Cost of the appeal made easy.

Pending applications, if any, do not survive for

consideration and accordingly, they are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE Am.